As we count down to the April 2020 IR35 reforms, there is yet more news of a celebrity who has been on the receiving end of a determination from HMRC for unpaid PAYE Tax and national insurance. Like many of the recent high-profile cases, the courts found in his favour.

This time, the eyes of the taxman have been on Paul Hawksbee of Kickabout Productions Limited. Despite having been a regular on Talksport for eighteen years, the case itself relates to a three year engagement that Mr Hawksbee had with Talksport between 2012 and 2015. During which time, Kickabout Productions Limited (KPL) entered into two separate contracts.

The notice of determination for unpaid PAYE and national insurance which HMRC brought against KPL under the IR35 legislation was for a total tax liability of £143,126 for the years 2012/13, 2013/14 and 2014/15.

As we’ve seen with other public examples of IR35 investigations, the first tier tribunal reiterated the fact that determining employment status is not a tick box exercise. It involves an evaluation of the whole picture and is a ‘multi-factorial assessment’.

Whilst Mr Hawksbee beat HMRC in this instance, it was not an outright rejection. In fact, the jury could not decide which way to decide on the appeal so it was up to the judge to use their casting vote.

Let’s take a look at some of the aspects looked at during the investigation:

Mutuality of obligation

Although the court agreed that mutuality of obligation exists it fell below the level required to indicate an employment relationship.

Control

Whilst both contracts entered into during this time were different, they each required Mr Hawksbee to provide his services at a very specific time of day during his radio slot. Whilst the courts accepted that Talksport ultimately controlled how Mr Hawksbee performed his services the control they could exercise with regards to what services he could be obliged to provide was narrow. His obligation extended as far as preparing and delivering the show.

Substitution

Often regarded by many as a ‘silver bullet’ in regards to determining IR35 status. The right to substitution was not present. Whilst personal service is ordinarily indicative of an employment relationship, it was regarded by the courts to be largely irrelevant as it would be expected in these specific circumstances that in both an employment contract and a contract of service it is reasonable that no substitution could be made.

Other factors

The strongest indicator of employment was his economic dependence on TalkSport for the years in question and a degree of exclusivity that was contained in the contract, although this only extended to working specifically as a radio presenter for another talk show.

The contract provided no rights for holiday pay, sick pay etc and no provisions regarding medicals, training. It was clear that it was not the intention of the parties to create an employment relationship.

The decision

The courts concluded that the relationship was not one of employment and was a contract for services. However, this decision was by no means unanimous and was arrived at by the casting vote. A different conclusion was reached on the same evidence by a dissenting judge.

The outlook for HMRC

This outlines the difficulty in determining the IR35 status of your contracts and as HMRC’s record of successful cases at tribunal is poor, further casts doubt on the CEST (Check Employment Status for Tax) tool.

IR35 Support from Parasol

Of course, IR35 is not a consideration for contractors who choose to work as umbrella employees. However, if you have a contractor client who has questions about IR35 or is unsure about the status of one of their contracts, why not speak to our expert team for advice? At Parasol, we ensure all contractors are fully compliant when it comes to their tax, National Insurance and other obligations.

Whether you’d like an informal IR35 discussion or a member of our expert agency team to provide IR35 training, visit our recruiter page to see how we can help.